About the provision of criminal liability exemprion in the 1999 criminal law code of Vietnam

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S/NU. JOURNAL OF SCIENCE, ECONOMICS-LAW, N01E, 2004

ABOUT THE PR O V ISIO N OF CRIM INAL LIABILITY EXEM PTION

IN THE 1999 CRIM INAL LAW CODE OF VIETNAM

In order to improve the efficiency of the
fight against crime and for th e sake of fair

and correct tre a tm e n t policy, our law m akers
together w ith classifying types of crimes has
divided th e crim inal law into different

criminal cases a n d different criminal
offences. Notably, the division of offences
and types of criminals has reflected through

a fact th a t not all crimes an d offenders have
to face criminal liability.

Rather, an offender shall be exempted

from criminal liability u n d e r exclusive
privileged conditions a n d legal foundations.

Exemption from criminal liability was

not acknowledged in th e V ietnam Criminal
Law as an indep endent provision but it was
realized a n d applied in reality and legal
documents un d e r such different nam es as

“criminal liability exemption”, “absolution”,

“defendant acquittal”, etc.

It was in the Criminal Code of 1985 th a t
the provision of crim inal liability exemption

was officially recognized by law m akers and
it was am ended in th e second codification in
Criminal Code of 1999. However, reality
shows th a t the provision h a s not been paid
proper attention to and h a s not been

comprehensively a n d intensively studied.
Both Criminal Code of 1985 and th a t of 1999
have not given a legal definition of criminal

liability exemption a n d its specific legal
consequences. R ather, cases of exemption

(,)Faculty of Law, V ietnam N ational University, Hanoi.

T rinh T ien V iet(,)

from criminal liability are sporadically
stipulated in articles and chapters in the
General p a rt and The crime parts, Criminal

Liability. This, obviously, is scientifically
incorrect and unqualified in term s of

legislative techniques, Moreover, the

application of Criminal law to trial and
reality shows th a t quite a lot of inadequate
regulations of exemption from criminal
liability remain. Especially, there are many
cases in which the provision could have been

applied b u t unfortunately, it h a s not been
stipulated in the criminal Code. Therefore, it
is significant th a t the existing legal
regulations of exemption from criminal
liability should be fu rth er and fully studied
for the sake of scientific clarity. Accordingly,
proposals are expected to be given for the

b e tte r norms of th e provision, which is in
m atch with theoretical-practical and social-

legal reality.

1. The C o n cep t o f E x e m p t io n from 
C rim inal L iab ility

Exemption from criminal liability is one
of im po rtan t provisions in the Vietnam
Criminal Law, representing our party and

S ta te ’s h u m a n ity policy towards

law breakers and their wrongdoings. It is a t
the same time aimed a t encouraging
law breakers to atone from their offence by
th eir good deeds, showing the good impact of

reeducation activity, helping th em quickly
fall in line w ith their community, becoming
helpful to society. Much significant it is, the

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74 Trinh Tien Viel

concept of exemption from criminal liability
has not been recognized in realistic criminal
law by lawmakers. Currently, there are
divergent perceptions of this concept in our

criminal law science as follows:

♦ “Criminal liability exemption is a
hum anity provision of th e V ietnam Criminal

Law and exercised by g rantin g legal
consequences absolution of a dangerous-to-

society action which is prohibited in criminal
law to the person who is responsible for th a t
action.”(4, pg7)

♦ ‘T o exempt someone from criminal
liability is to acquit a crime stipulated by

law of legal consequences”(22, pg293)

♦ “Criminal liability exemption is the
acquittal of a crime and pu n ish m e n t granted
to the man who commits th a t crime, and
then he is not regarded as guilty. In other

words, to exempt someone from criminal

liability is to acquit him of legal

consequences s tipulated in criminal law.”

♦ “Criminal liability exemption is the
acquittal of legal consequences granted to a

man who commits a crime u n d e r some
conditions stipulated by law.(10, Criminal

liability ex.p. 109).

♦ ‘T o exempt someone from criminal
liability is not to prosecute him for the crime
he commits”(15, pg 324)

♦ “Criminal liability exemption is the

acquittal of criminal liability granted to a

man who commits a crime which is
slipulated in criminal law, represented in a
document of S ta te ’s com petent agency.”

♦ “To exem pt someone from criminal

liability is not to force him to take
responsibility for the crime he commits”(21,

pg 166)

♦ ‘T o exem pt someone from criminal
liability is not to prosecute him for

committing a crime a n d subsequent

consequences re s u lte d from being subject to

coercive m e asures of criminal liability and
police record. In reality, in cases th a t the

offenders are exem pted from criminal

liability right in trial period by the Court,

Criminal liability exemption includes the
exemption from coercive m easures, criminal
liability a nd police record”(19, pg 9-10)

♦ Exem pting someone from criminal

liability is not forcing a m an to hold criminal
liability for the crim e he commits.

♦ “C rim inal liability exemption is the

exemption from disadvantageous legal

consequences including being convicted. And

of course, a m a n being entitled to criminal
liability exemption is not regarded as guilty
and subject to p u n is h m e n t and police
record”(14, pg 97)

As such, in essence, all the above-
mentioned perceptions of criminal liability
exemption are relatively concise, appropriate

b u t more im p o r ta n t a re consistent in
emphasizing its legal co ntent and nature.
However, in o u r opinion, the concept of
criminal liability exemption which h a s a
comprehensive a n d correct content is legally

concise and consistent and a t the same time
in m atch w ith ap p ro p ria te to the S ta te ’s
h u m a n ity policy is expected to answ er such
auestions as w h a t its legal n a tu re (criminal

liability exemption) is, how it works in

practice; which com petent agency is entitled

to apply it; who a re subject to it and which
requ irem en ts a n d legal basis it is expected to

be met. Therefore, on th e basis of already-

mentioned scientific views, the analysis of
regulations of related criminal law, and
criminal law science, we think criminal

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About the provision o f crim inal liability exe m ption in. 75

liability exemption can be defined as follows:
criminal liability exemption is a hum anity
provision of th e V ietnam C riminal Law and
is regulated in a legal document which
acquits a m an from disadvantageous legal
consequences of com m itting dangerous-to-

society crime. This provision is applied by
investigation agency, Board of control and
the Court depending on corresponding
procedures on th e basis of ad equate evidence
and stipulated conditions.

2. B a sic F e a tu r e s o f C r im in a l L iability 
E x e m p tio n

Based on the above-mentioned definition

of criminal liability exemption and the study

on the regulations of th e existing criminal
law, some basic features of criminal liability
exemption are coined as follows:

♦ Firstly, to gether w ith a series of other

provisions like provision w ith cases excluded
from criminal behaviors’ characteristics,

mitigating circum stances of criminal

liability, th e exemption from punishm ent,

prescription (including prescription of

criminal liability proceedings and th a t of the

sentence execution), exemption from judicial
execution, suspended sentence and police
record. The provision of criminal liability

exemption best reflects the hum anity

principle of crim inal policy in general and
Vietnam C rim inal Law in particular.

♦ Secondly, criminal liability exemption
is applicable only to the one who is subject to

a given crime and he shall meet the

requirem ents of legal foundations and

conditions stipu lated in c u rre n t criminal law
and depending on specific cases, th a t
criminal liability exem ption is optional or

obligatory. If it is optional, even when all
legal foundations and stipulated conditions

are met, w h e th er criminal liability
exemption is applied or not shall be decided
by competent bodies.

♦ Thirdly, criminal liability exemption
decided by S ta te ’s competent bodies shall be

represented in legal documents. Specifically,
investigation agency shall make a decision of
suspending an investigation (by written

documents) when th ere are foundations
stipulated in Article 19, 25 Clause 2, Article
69, Criminal Code and Article 164, Criminal
Procedure Code of 2003. Board of Control
shall make a decision of suspending a case if

there is one of foundations stipulated in
Article 19, 25, and Clause 2, Article 69,

Criminal Code 9 Article 169, Criminal
Procedure Code of 2003) or withdrawing a
decision of prosecution and requesting the
Court to suspend a case (Article 181,
Criminal Procedure Code of 2003).

♦ Fourthly, depending on specific

periods of criminal proceedings, criminal
liability exemption shall be merely executed
by a S ta te ’s competent body. Specifically, it
might be e ith e r Investigation agency, Board
of Control or th e Court (Articles 164, 169,

181, Criminal Procedure Code of 2003) and
it is expected t h a t all requirem ents of legal
foundations and conditions stipulated in
criminal law are fully met.

♦ Fifthly, criminal liability exemption
shall always go in h a n d s with the provision
of criminal liability in V ietnam criminal law.
The concept and basis of criminal liability
exemption is derived from those of criminal
liability. Accordingly, in a broad sense,
criminal liability is th e disadvantageous

legal consequences t h a t an offender is to
take for committing a crime which is

executed by the application of one or more

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76 Trin h T ien Viet

State’s strict coercive m easu res stipulated in
Criminal Law.

Exempting someone from criminal

liability m eans not forcing him to face

disadvantageous legal consequences of

criminal behavior which would have been
born by him u n d e r the stipulation of
criminal law if legal foundations and
conditions req uừ ed by law entitled to the
exemption from the crime had not been fully

available. Besides, criminal liability

exemption and criminal liability share the

same basis, i.e. “the com m itm ent of a

dangerous-to-society crime which is

regarded as guilty by criminal law” (6,

pgl33). In both of these cases, the subjects

committing the dangerous-to-society crime
which is regarded as guilty by criminal law
are all offenders. To p u t it ano th er way,
subjects who commit a crime shall have

necessary capacity of crim inal responses and
reach required age. However, the convict is
to take the criminal liability while the
offender has full legal foundations and
conditions required to be entitled to the
exemption from criminal liability stipulated
by criminal law. This m eans if seeing th a t

criminal liability is not really necessary to be
applied in some given cases b u t th e aim of
the anti-crime fight can still be achieved, the

competent bodies shall acquit the offenders
of criminal liability. The sam e decision could

be applied to cases t h a t show the impact of
reeducation program s on the offenders.

♦ Sixthly, one who is entitled to criminal
liability exemption is obviously not subject to

disadvantageous legal consequences of the
crime (eg: being exem pted from criminal

liability investigation, punishm ents, other

criminal coercive m easures, police record
and not being regarded as guilty. However,

w hether or not th e offenders are subject to
one of more o th e r criminal coercive
m easures h a s n ot b een stipulated in our
c urrent C rim in al Code. As for this issue,

People’s S u p rem e C o u rt’s J u d g e Council
released Decree 02’H D T P dated Jun e, 1st,
1986 on th e in stru c tio n of applying some
regulations of C rim in a l Code stipulated in
Section VIII as “w h e n exemption from
criminal liability is executed, the Court shall
not be p e rm itte d to decide w hatever
pu nish m en t b u t will still be able to make a

decision on com pen satio n for the victims and
on m a tte rs re la te d to m aterial evidence”.
Nevertheless, trial reality shows th a t
acquitter m igh t be subject to one or more
forcing m e asu re s in o th e r corresponding law

branches such a s preventive measures

und er th e re g u la tio n of th e Criminal
Procedure Code; being forced to make
something r e t u r n to its prim ary state or

make com pensation, etc. un d e r the

regulations of civil law; being fined, w arned
under reg ulatio ns of adm inistrative law;
having labor-contract te rm in a te d un der

labor regulations or being disciplined,

etc(4,pg 7)

♦ And finally, th e introduction of the
Provision of c rim inal liability exemption in

the V ietnam C rim inal Code is of great
significance. It does not only encourage
law breakers to atone for t h e ừ offences by

good deeds, show ing th e impact of

reeducation activities on wrongdoers,

facilitating th e ir process of falling in line
with the whole society b u t also create legal

foundations for th e combination of S ta te ’s
criminal coercive m e a s u re s and society’s
influencing m e a s u re s in re-educating

lawbreakers, help in g th e m become helpful

citizens.

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About the provisio n o f c rim in a l liability exemption in. 77

3. C a s e s o f C r im in a l L iability 
E x e m p tio n S t ip u l a t e d in th e 
V ie t n a m C r im in a l C od e o f 1999

A stu dy on the n orm of th e provision of
criminal liability exem ption und er the

regulation of the C rim in a l Code of 1999
shows th a t in th e c u rre n t crim inal law, there
are altogether 9 cases, sporadically in the
whole code including five cases in The
General P a r t (Article 19, 25, Clause 2,
Article 69), four cases in T h e Crime (Clause

3, Article 80; Section 2, C lause 6 Article 289,
Clause 6 Article 290, C lau se 3 Article 314).
Each of these is considered as follows:

3.1 C r im in a l L i a b i l i t y Exem ption

R e s u lte d fro m S t o p p i n g C om m ittin g

C rim e in H a lf w a y on S elf-w ill

Article 19, C rim inal Code of 19;^9
stipulates th a t stopping committing the
crime in h a lf way on self will is voluntarily

not to commit th e crim e till th e end although

there is no obstacle. T he offender in this case
is entitled to be ex em p ted from criminal
liability for the crime he in te n d s to commit;
if the criminal behavior includes factors th a t

are sufficient to contin ue a n o th er offence,
the doer is to ta k e crim in a l liability for this
offence. Accordingly, crim inal liability
exemption is obligatory. However, it is

applied only for cases in w hich the crime is
committed in the period of preparation

which h a s not been finished, not depending
on the types of crim e (not very serious,

serious, very serious or extremely serious
crimes) if one’s crim inal behavior includes
factors th a t a re sufficient to constitute an
offence, one is to ta k e responsibility for this

offence. As such, th is provision is a
h u m a n ity regulation a n d a t th e same time
reflects th e legislative principle, the fairness

in tre a tm e n t of our policy as well as in the
fight against crime, protecting social

relations from criminals. However, our

Criminal Code of 1999 merely has

regulations of applying criminal liability
exemption to a sort of accomplice but there is

no specific and clear regulation on applying
it to three types of accomplice including
o rg a n iz e r , s t i m u l a t o r a n d a s s i s t a n t
(7,p.g 224). Of course this issue ha s been
mentioned in Item I, Decree 01-89/HDTP

dated April, 19th, 1989 by Jud ge Council,

people’s Suprem e Court on amending

instruction of some regulations of criminal
code. However, it is expected to be officially

noted in the cu rre n t Criminal Code of 1999.

3.2 C rim in a l L ia b ility Exemption

T h a n k s to S itu a tio n a l Progress

P u r s u a n t to Clause 1, Article 25,
Criminal Code of 1999, the offender shall be
exempted from criminal liability if in the
process of the investigation, prosecution or

trial, the criminal behavior or the offender is

no longer dangero.us to society th a n k s to
situational progress. It was optional case in

th e Criminal Code of 1985. Therefore, this

emerging feature ha s shown the

h u m a n ita ria n tren d in th e Criminal Code of

1999 tow ards law breakers and their

criminal behaviors as well. Besides, some
am en d m en ts in the prosecution phase

(alongside w ith investigation and trial phase

stipulated in Article 48, Criminal Code of
1985) have been made in the Item I. Once
th e offender has sufficient legal foundations
and required conditions he is entitled to be
exempted from criminal liability. Also in

Clause 1, Article 48, t h a t the provision of
criminal liability exemption is applied to

certain types of criminals is not stated.

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78 Trinh Tien V iet

Therefore, it is applicable to all types of
criminals (Clause 3, Article 8) providing th a t
sufficient common legal foundations (when
investigation, prosecution or trial are
underw ay or owning to situational changes);

also one of the two above-mentioned

conditions has to be m et (Item 1)- criminal
behaviors or criminal is no longer dangerous
to society. However, it is not applicable if two
cases are separated. This is because one can

be exempted from criminal liability when in
the investigation, prosecution or in trial,
criminal behavior is not dangerous to

society, b u t the criminal is.

3.3 C rim in a l L ia b ility E xem ption to

Offenders for S h o w in g R ep en ta n ce a n d 
Desire to R edeem Their F a u lts

P u r s u a n t to Clause 2, Article 25, the
Vietnam Criminal Code of 1999, in the case
which the offender confesses to the authority

before the crime is known, declares

everything, m aking a helpful contribution to
the au thority’s work in realizing and solving
the case, minimizing the dam age caused by

the crime, he can be exempted from criminal
liability. The case is exem pt only when the

following req uirem ents a re m et by the
offender.

♦ He should confess to the authority
before the crime is known.

♦ He should declare everything (his own

activities and oth er accomplice’s),

contributing effectively to the authority’s
work to realize an d solve th e case.

♦ He should take a n active role in
preventing the consequences caused by the

crime. In other words, he should actively
prevent the consequences and keep to a
m inimum level dam ages to the State,

organizations or people.

One noticeable thing is t h a t confession
and submission should be differentiated
from each other. Confession m eans th e

offender confesses to the authority

voluntarily after com m itting a crime. At th e
time, neith er the crime itself nor th e

criminal h a s been known. Submission

m eans the offender gives up to th e authority
after the crime or the criminal is realized
although he may elude.

A part from that, to be willing to
su rm o u n t the dam ages m eans the offender

willingly m akes up for the dam ages (mostly
to assets) caused by th e ir offence. To be
active in preventing consequences m eans to

be active in preventing possible

consequences or limiting the damage to the

State, organization or to people. For th is
case, it is highly recommended t h a t
law m akers should provide specific guidelines
such as w h a t being detected is, and who

detects the offence, common people or the
authority.

3.4 E xem ption from C rim in a l L ia b ility

When There is a G en eral P a r d o n

According to Clause 3, Article 15,
Vietnam C rim inal Code of 1999, one is

exempt from criminal liability when he is
given amnesty. This case is compulsory

when there is some w ritten am nesty
documents. G eneral pardon is exemption
from criminal liability for given offenders or
those who commit one type of crime.

It is ruled by the Vietnamese

Constitution t h a t only th e National
Assembly can give general pardon (Clause

10, Article 84). A general pardon is often

given on some special historical occasions,
which reveals the tolerance of the State to

offenders. A mnesty documents, issued by the

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About ihc provision o f crim in al liability ex e m p tio n in. 79

National Assembly are applied to cases

which are laid on.

One is quit from prosecution, and in

prosecution, the process should end

immediately, if he h a s served the

punishm ent, he is not considered as an ex

convict. For one who fm «5 him self innocent,
the case can be laid before the Court as his
wish. If he is found not guilty it is the

Court’s responsibility to announce the tru th,
if he is found guilty, he can still he exempted
fro crim inal liability th a n k s to the

amnesty documents.

3.5 E x em ption from C rim in a l L ia b ility

for J u v e n ile Offenders

Clause 2, Article 69, V ietnam Criminal
Cod of 1999 ru es th a t a juvenile criminal

can be exempted from criminal liability in
the case his crime is little serious or serious
b ut causes little dam age, and he is taken

into supervision by his family or

organization. Once some given conditions
a re met and there are some legal bases, this

exemption is optional an d can be decided by

all jurisdictional bodies’ depending on
corresponding period of criminal procedure.

This is different from the C rim inal Code of
1985 (Clause 3 Article 59) in which the law
stipu lates th a t only the People’s Board of
Control can exempt juvenile offenders from

criminal liability. Some requirem ents

according to which one can be a subject of

this tolerant policy are as follows:

♦ First, the offender is juvenile (Article
68, Criminal Code of 1999)

♦ Secondly, the crime he caused should

be little serious or serious with little
damage.

For this condition, unlike the Criminal

Code of 1985, the C rim inal Code of 1999
adds the case of which the offender commits
serious crime into the list of those who can
be exempted from criminal liability. By

Criminal Code of 1985, a serious crime is one

th a t causes g reat dam ages to the whole
society and the m axim um sentence for those

who commit this kind of crime is more than
five-year im prisonm ent, life sentence, even
death penalty meanwhile by the Criminal

Code of 1999, the m axim um sentence for
serious offences made by the juvenile is 7
years in prison. Obviously, the Criminal
Code of 1999 brings more opportunities for

young offenders to be exempted from
criminal liability. This is the tolerance in

Vietnamese criminal law.

♦ Thirdly, th ere are a lot of mitigating
details which can be defined either in law

(Clause 1, Article 46, C rim inal Code of 1999
or out law (in documents guiding law
application or in cases considered and

m arked by the Court).

♦ Fourthly, the offender is supervised

and trained by his family or some

organizations. This creates good conditions
for young offenders to correct himself,
develop healthily and become a good citizen.
Also, it helps to socialize re-educating

activities for offenders, putting them under

the supervision of his family and

community.

T h a t the law, however, rules “Juvenile

offenders can be exempted from criminal
liability if they commit a crime which is not
so • serious or serious but with little

dam age.’XClause 2, Article 69) is easily
misunderstood to be contradictory with the

regulation which rules “A serious crime is
one th a t causes great dam ages to the society

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80 Trinh Tien Viet

and the maximum sentence for this kind of
crime is 7 years’ im prisonm ent.” This can be

explained th a t there is no sen o u s crime with
no great damages, if there is, it is the case
the crime of little seriousness, or the crime
with little damage. As a result, to be more

concise and adequate, it should be rew ritten
like this “ ..serious crime w ith little
dam ages...”. Furtherm ore, the law does not
stipulate clearly th e cases in which the

offenders are watched over and re-educated
by his family, or by some given organizations.

3.6. E xem ption from C rim in a l L ia b ility

for Spies

Espionage is a serious crime

threatenin g national security. For this
crime, the State applies strict and decisive

pu nishm ent because m ain tain in g national
security stable is a m a tte r of survival of any

country. Nonetheless, in spite of its

dangerous nature, the S ta te still has some

particular tre a tm e n ts for the offenders on
the basis of the features and how dangerous
the crime is in case th e re is inadequate legal
evidence as well as some given conditions. It
is therefore stipulated in Clause 3, Article 80
of the 1999 Criminal Law th a t “A spy who

fails to do his given job b u t confesses it to the
authorities or com petent State bodies and
declares with all sincerity is exempted from
criminal liability.” In case the offender

intentionally acts as a spy, or maybe un der
some circumstances, he may be forced to do

this job, or be bought over, be seduced to give
information to foreign p arties b u t after a

time, on realizing th a t his deed is illegal and
may h arm national security and once known

to jurisdictional organizations, he will be
strictly punished, he comes to the authority

and confesses everything, the offender is

exempt. The exemption should also be based
on the n a tu re of the offence. If he is realized
as a re p e n ta n t sinn er who may need no
prosecution, there may be exemption.

3.7 E xem ption from C rim in a l L ia b ility 
for B ribers o r Those Who A ct as a B ribery 
In term ed ia ry

Section 2, Clause 6, Article 289 and
Clause 6, Article 290 rule over the case of
exemption of criminal liability for people
who bribe or act as a n interm ediary in

bribery. P u r s u a n t to Section 2, Clause 6,
Article 289, Criminal Code of 1999, if one
actively declares his offence und er no force
before it is disclosed, he may be exempted

from criminal liability and be given back
p a rt or whole of his bribe value. A briber is
one who asks a person of im po rtan t function
to receive his money or accept the bribe
request of the latter. If his offence has not
been disclosed and despite of possibility of

hiding the case, he confesses to the authority

un der no force, he can be exempt from
criminal liability as he is a re p e n ta n t briber

who declares all his offence and other’s
sincerely. This rep resents the h um anity in
Vietnamese law, encouraging one to do good
deeds after committing a crime.

The C rim inal Code of 1985 does not
g ran t criminal liability exemption to a
bribery interm ediary. This m eans anyone
proved to be a in term ed iary for a bribery can
be liable for the crime. Meanwhile, in the

Criminal Code of 1999, bribery interm ediary
is a sep a ra te article and the offenders can be
exempted from criminal liability. Clause 6,

Article 290 of the 1999 Criminal Code says
one who acts as an interm ed iary in a bribery
can be exempted from criminal liability by

actively declaring his offence before it is
known.”

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About the provisio n o f crim in al liability exem ption in. 81

Both the above cases of exemption are
optional a n d can be applied on the basis of

adequate evidence and corresponding

conditions according to which one has to
meet. This can be seen th a t our legal policy
is to punish those who accept bribes strictly

and at the sam e time to encourage those
who actively declare to the authority,
facilitating th e com petent bodies’ activities

in discovering early an d fighting effectively
this kind of crime.

3.8. E x em ption from C rim in a l L ia b ility

for Subjects w ho Does not Inform the 
A u th o rity o f the Crim e

Article 314, C rim inal Code of 1999 says
th a t not denouncing a criminal is considered

a s the kind of criminal. The criminal knows
clearly of a crime b u t does not intentionally
keep the authorities informed of it. This
offence is regard ed as crime only to some
particular offences (which are defined in

Article 314, and are referred to in Article
313, Criminal Code of 1999). However,

acxording to C lause 3, Article 314, if the
offender h a s tried to p revent the criminal or

to limit the consequences of th e crime,
instead of being convicted, he will be

exempted from crim inal liability. If the
offender m eets one of th e two following
conditions (defined in C lause 3, Article 314),

he will be exem pted from criminal liability.

♦ The one who does not denounce the

crime h as prevented the criminal.

♦ The crim inal limits consequences of
the crime.

This case of exemption is optional. The

offender is exem pt w hen he h a s adequate

evidence. A nother feature th a t exists in the
Criminal Code of 1999 is in Article 22, in

which there is a clause about the exemption

from criminal liability for the criminal’s
grand parents, parents, siblings, and spouse
who do not denounce him to the authorities
except for some kinds of crime threatening
national security or some specially serious

crimes (similar to Clause 2, Article 314,
Criminal Code of 1999)

4. S om e P r o p o s a ls

Having studied the exemption from
criminal liability both in theory and in

practice, some proposals to perfect the norms
an d regulations of the V ietnam Criminal
Code of 1999 are made as follows.

♦ Firstly, in each case of exemption from
criminal liability (including the General part

and the Crimes part) there should be

guiding documents in details and there
should be some uniform in conceptions on
the basis of specific conditions which have
been presented above.

♦ Secondly, the exemption of liablity

from criminal liability which is stipulated
sporadically in different p a rts of the General

p a rt and the Crime p a r t is unreasonable and
unsuitable. So, immediate, concise and

accurate ad ju stm en ts should be made by law
makers.

♦ Thirdly, exemption from criminal

liability and exemption from punishm ents
should be clearly differentiated. According to

Article 54, th e law breakers with crime of

mitigating details as defined in Clause 1

Article 46 can be exempted from

pun ish m e n ts if his offence is worth some

tolerant tre a tm e n t b u t not the exemption
from criminal liability. Clause 3 Article 314

says: “one who tried to p revent the criminal
or limit th e consequences caused by the

crime can be exem pted from pu nishm ents or

from criminal liability”. It can be seen th a t

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82 Trin h Tien Viet

law m akers have separated two definitions
b u t not in corresponding stipulations, which
m akes the application seem to be harder.
Exemption from p u n ish m e n t and exemption
from criminal liability are different in

n a tu re , condition, competence and

procedures of application. A person

exempted from p u n ishm ents is not exempted
from criminal liability. Yet, one who is
exem pted from criminal liability can enjoy

exemption from punishm ents. W h at’s more,
only the Court ha s the rig ht to exempt

someone from pu n ish m e n ts after

announcing a verdict meanwhile different

bodies (Investigation Agency, Board of

Control or the Court) can exempt a person
from criminal liability.

♦ Fourthly, in the c u rre n t Criminal Code
of 1999, only juvenile offenders are ruled to

be in watch and be re-educated by parents,
or by the organization w here they work and
live. For o th e r cases, th e re is no

corresponding stipulation. Thus, in order to
prevent the one who is exempted from
criminal liability from repeating the crime
and to help him mixed up with the whole
society, there should be stipulations for all
cases. They should be w atched over and r e
educated. By th a t way, th e effectiveness of
the combination betw een coercive m easures
taken by the S ta te an d the influence of social

education is promoted.

♦ Finally, in order to keep up with o th er
countries’ criminal law and the practicality

as well as to h um an ize the S ta te ’s criminal
provisions in the period of constructing a

law-ruled state, some more cases of

exemption from criminal liability like

exemption for the offender w hen the victim

withdraw s the re q u e st of prosecution; for
captivity escapers or w hen there is a

detente between th e victim and the offender,
the time of prosecution procedure is over
should be added.

R E F E R E N C E S

1. Bộ luật H ình sự nước Cộng hịa Xã hội Chủ nghĩa Việt N a m , 1985, 1999.
2. Bộ luật T ố tụng H ình sự nước Cộng hòa Xã hội Chủ nghĩa Việt N a m , 2003.

3. Bình luận Khoa học Bộ luậ t H ình sự Việt N am năm 1999 - Tập I, (Phần chung), tập thê các
tác giả do Tiến Sì ươn g Chu Lưu chủ biên, NXB Chính trị Quốc Gia, Hà Nội, 2001.

4. Lê Cảm, Về các dạng miễn trách nhiệm hình sự được quy định tại Điều 25 Bộ lu ậ t Hình sự
năm 1999, Tạp chí Tịa án N hàn dàn sơ' l / 2001.

5. Lê Cảm, Về sáu dạng miễn trách nhiệm hình sự khác (ngoài Điều 25 trong Bộ lu ậ t Hình sự
năm 1999, Tạp chí D ân chủ và Pháp lu ậ t, số 2/2001.

6. Lê Cảm, Các nghiên cứu chuyên khảo về Phần chung L u ậ t H ìn h sự (Tập III), NXB Công 
Anh Nhân dân, Hà Nội, 2000.

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nước và pháp luật Việt N a m trước thềm th ế k ỉ X X I, Tập thể tác giả do TSKH Lê Cảm chủ 
biên, NXB Công an N hân dân, Hà Nội, 2002.

8. Nguyễn Ngọc Chí, Chê định miễn trách nhiệm hình sự trong lu ậ t hình sự Việt Nam, Tạp

chí Khoa học, sô' 4/1997.

9. Thái Quê Dung, N hững trường hợp được miễn trách nhiệm hình sự theo Điều 48 Bộ luật
hình sự, Tạp chí Kiêm sốt, Chuyên đề về Bộ luật Hình sự, sơ* 4/1999.

ì

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10. Trần Vần Độ, Chương IV - Trách nhiệm h ình sự, trong sách: Giáo trinh luật hình sự Việt 
N am (Phần chung), Tập thể tác giả do TSKH Lê c ả m chủ biên, NXB Đại học Quốíc gia Hà

Nội, 2003.

11. Phạm Hồng Hải, C hế định miền trách nhiệm hình sự trong lu ậ t hình sự năm 1999, Tạp 
chí D ân chủ và Pháp lu ậ t, sô" 12, 2001.

12. Phạm M ạnh Hùng, Một sô*ý kiến về miễn trách nhiệm hình sự, Tạp chí Tòa án N hân dân,
số 2, 2003.

13. P hạm M ạn h Hùng, v ề chê định tự ý nửa chừng chấm dứt việc phạm tội, Tạp chí Tịa án 
N h ả n d â n , sô 8, 1995.

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tiến sĩ, Trường Đại học L uật Hả nội, 2003.

15. Đỗ Ngọc Quang, Chương IV, Phần 3, trong sách: Giáo trình luật H ìn h sự Việt N am (Phần
chung), Tập thể tác giả, Trường Đại học c ả n h sát, Hà Nội, 1995.

16 Đ inh Vàn Quế, B in h luận khoa học Bộ luật hình sự năm 1999 (Phần chung), NXB TP Hồ

C hí Minh, 2000.

17. L ê Thị Sơn, Chương 1, Trách nhiệm hình sự, trong sách: Trách nhiệm h ình sự và hình
p h ạ t , Tập thể tác giả do PGS. TS. Nguyễn Ngọc Hịa chủ biên, NXB Cơng an Nhân dân, Hà

Nội, 2001.

18. Đinh Kiều Thụ, Tìm hiểu luật hình sự Việt N a m , NXB TP Hồ Chí Minh, 1996.

19. T rịnh Quốc Toản, Chương 15, Miền và giảm hình phạt, trong sách: Giáo trình Luật hình sự
Việt N am (Phần chung), Tập thể tác giả, NXB Đại học Quốc gia Hà Nội, 1997.

20. Võ K hánh Vinh, Chương XVIII, Miễn trách nhiệm hình sự, trong sách: Giáo trinh luật 
h ìn h sự Việt N a m (Phần chung), Tập thể tác giả do PGS. TS Võ K hánh Vinh chủ biên, NXB 
Công a n N hân dân, 2001.

21. Trương Q uang Vinh, Chương XII, Trách nhiệm h ình sự và hình phạt, trong sách: Giáo 
trình luậ t hìn h sự Việt N a m , Tập thể tác giả do PGS. TS. Nguyễn Ngọc Hòa chủ biên, NXB 
Công an N hân dân, 2002.

22. Đào T rí ức, Bình luận Điều 48, Miễn trách nhiệm hình sự, miền hìn h phạt, Chương VI,
trong sách: Mơ h ìn h lí luận về Bộ luật hình sự Việt N a m (Phần chung), NXB KHXH, 1993.

TAP CHỈ KHOA HỌC ĐHQGHN, KINH TỂ - LUẬT, sỏ' 1E, 2004

VỂ CHẾ ĐỊNH MIỄN TRÁCH NHIỆM HÌNH s ự TRONG

BỘ LUẬT HÌNH S ự VIỆT NAM 1999

T rịnh T iế n V iệt

K hoa L uật, Đ ại học Quốc g ia H à N ội

Miễn trách nhiệm h ìn h sự là một điều khoản n h â n đạo của Bộ lu ậ t h ìn h sự Việt Nam, có
liên hệ và có cùng cơ sở vói trách nhiệm h ìn h sự. Q ua nghiên cứu về điều khoản miễn trách
nhiệm h ìn h sự và k ế t hợp vỏi thực tế, tác giả đã p h â n tích và làm rõ một sơ" v ấn đề dưới đây:

- Q uan niệm t h ế nào là miễn trách nhiệm h ìn h sự

- Các đặc điểm của miễn trách nhiệm hình sự

- Các trường hợp m iễn trá c h nhiệm h ìn h sự trong Bộ lu ậ t h ìn h sự Việt N a m 1999.

Trong khi p h â n tích tác giả đã kết luận và đã đưa r a một sô" đề x u ấ t để hoàn thiện điều
khoản về miễn trá c h nhiệm h ìn h sự trong Bộ lu ậ t h ìn h sự Việt N a m hiện h àn h.

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